IN THE HIGH COURT OF AUSTRALIA REASONS FOR JUDGMENT Judgment detivered at. BRISBANE 'A.C. Brooks, Government Printer, Melbourne ©.7630,'60 Appeal dismissed with costs. By his will, dated 7th September 1961, Janes Walter Bristow appointed his sistar-ineLav, the appellant, exeouteix ef his will end gave and bequeathed to his wife, the wespondent, the sum of one thousand pounds and "a weekly allowance of FIVE POUNDS distralian Currency to be paid to her during her life muh weekly allevance only to be free of all éaties", He alse gave legacies of one thousand pounds and two hundred and fifty pounds respectively to his daughter and oon and thereafter gave, devised and bequesthed the residus of his estate to the appellant. the testator died in Queensland sone fifteen days after making his will and in June 1962 probate of his will was granted to the appellant. A statenent of the susets and liabilities of the testator supplied to the respondent by the appellant's sclicitors dissloses that the net value ef the teatater's estate at the tine of his death vas 016,387 but this figure takes no scesunt of an undisclosed income tax Liability of £8,103 whilst suceession duty and federal estate duty, 46 ds estimated, will absorh respectively £10,900 and £3,690. Taking these Liabilities into account there will vemain for distribution approximately £24,000 less testamentary and other expenses. after tho testator's death the respondent commenced proceedings pursuant to The Testator's Fanily Maintenanse dots 191461982 and succeeded in obtaining an order that in substitution for ali other benefits under the will an amount of £12,900 in Aistvalian Currency should be palé to her free of a2) dation. In this appeal the order is attacked on three principal grounds. First of all, it 4s seid, thet the Learned judge of fivat instanee should have refused to make any order at all. Secondly, it 1s contended that there was no justification for making an order for the payment of a lump wom and, finally, it wae asserted that the ascunt awarded was excessive. The case appears to us, as no doubt it did to the learned judge, as wmisual in the extreme. The appellant and the respondent are sisters, the former, who was 59 years of age at the time of the hearing, being four years younger than the latter. The reapondent and the testator were married in Ruglend in suguat 1921, their tvo children were born in 1923 and 1925 respeutively and they lived together at various places in Rngland until 1991. But early during their married Life the testator began and thereafter contimied an association vith the eppellant which ultimately led to their separation. in 1949 the testater came to Australia where he bought a garage Wisiness and, unknown at the time to his wife, was accompanied on this trip by the appellant. Thereafter the testater and the appellant returned to England where the former sold his property and arranged passages to Australia for hie wife, his daughter and her hushand. It was arranged that the testator should follow his family to australia, and this he did in August 1951 + again accompanied by the appellant. However, om arrival in Australia he went to live with his wife where he remained for some short period and then announced to his wife " in the presence of her mother and bis daughter that he was leaving the hone and was going to live with the appellant. This he did and thereafter continued to live with the appellant until his desth. 'he respondent returned to England in 1953 where with the aid of money provided by the testator she purchased a house. From then until his death the testator vemitted £100 sterling per quarter to the respondent and he has om other occasions sent her other unspecified suns. It is plain that the respondent objected to the testator's association vith her sister and this is but a brief outline of the undisputed evidence. It is clear to us, as it was to his Honour, thet in the elroumstances the respondent's @laim must be regarded as paramcunt and that there is no feature of the ease whieh militates against this proposition, fhe appellant's ease upon the appeal was prefaced by observations concerning the exount which will probably be available for distribution, It was pointed cut. to us that the wost substantial asset in the estate is realty, the value of which vas shown in the stateusnt referred to as £31,200, Thon we were referred to a statenent in the appellant's affidavit that "from enquiries made by me and on my behalf by my Solicitors the market price of the aforesaid real property in Ate present ¢ondition will be less than TWEETXSEVEN THOUSAND POUNRS (£27,000, 0, 6) and may not exoned SwEHIyIWO THOUBAND VAYS_WOMDRED POUNDS (£22,500)", His Honour refused to act upon this atatement observing that the respondent, "vho as executrix had the duty of placing before the eourt full information as to the position of the estate, did not say what inquiries were made, and it does not appear whose opinion as to the value of the vealty ts intended to be conveyed by this paragraph, or vhat were the qualificationa of the person who held the opinion oF the grounds on whieh it was based. As evidense the statement is vorthiess and I cannot act upon it. There is evidence that the property has been placed in the hands of agents and advertised for sale, and it appears that it may prove difficult to sell as well as difficult to let, but these fasts do not establish its value. 1% feel bound to treat this land as having the yaiue ascribed to it by the respondent for duty purposes". We fully endorse these observations and, therefore, proceed to Consider the matter upon the basis that there will be an amount of, at least, £20,000 available for distribution, Qn this, or indeed on any more Limited view of the final balance of the estate, there was in our opinion a clear ease for relief. During his lifetime the testator had be wate an allowance to his wife of an ansunt in exeese of £400 sterling per anmum and this expressed in detralian Currency at % weekly vate was £16, or, twice as much as the allovance given to the respondent by the will, Nevertheless the respondent had found it inadequate te provide for ber reasonable requirements and 80 informed the testator on a number of geessions. dhe has van into debt, partidularly since the testater's death, and in addition to a mortgage on hey home to secure vepayment of 8 sin Of #680 she oven £100 to her brother-in-law from whos she borrowed this ancunt for her sustenanes, In these cizqumstances, 48 As Anponsible to miggest that it was not a case in vhioh an onder shauld have been made, The next question is whether, in the sireunstances Of the vase, 1t was proper for the learned judge of first instance to avard a lunp gum, As we have already checrved the Gage is quite extraordinary and it vas this cizcunstanss which led his Honour to provide for the respondent in this manner, Whe Henmp observed that the bulk of the setate comprised realty and that 10 was quite apparent, and a wise teatater would have foveseen, that to pay duties, tax, teatamentayy expenses and Legacies and to meke periodie paynents to the applicant it would be necessary to sell the land and reinvest sugh proseeds of sale as were available for investaent, He addeds "It is not denivable, if it ean be avoided, that the applicant in England shuld have to rely on the respondent, who caused the testator te leave hav, and who is in dustreling to manage the Loveatusnts and yeait the periodie payments for her maintenance, In the eirounstances the vidow's claim is streng enough to justify an avard of @ lump sum in substitution of the existing benefits under the will", He doabt in the absense of the special eiveunstange to whieh his Honour veferred it would have been dastrable, in the sain, to have granted relief in the form of an appropriate ammuity. Sut the reasons whieh induced his Se. Henour to take the course which he did were both relevant and dabetantial and we are by no means prepared te say that in taking this course bis diseretion miscarried. On the final question the luap aum whieh hie Heneur directed to be paid repreasmnts, perhaps, three-fifths of the amount which, as far as we Gan see, will ultinataly become available for distribution. the angen' uvended will euadle the respondent to dissbarge her Gxtsting liabititios and the balance, after retention of, say Mi ySOO Lar exexgemy expenditurs, vill represent on a five per ont basic the present walue of a little over £15 per week wterling for fifteen years or about £12 sterling per week for twenty years. This may, perhaps, be regarded as a not ungensvoun provision but to say this falls far short of holding that the amount averded was 80 excessive az to enable it to he said that his Honours discretion was improperly exercised. That being so, we are of opinion that the appeal should be dientesed.